Should Cops Be Allowed to Scan Your Phone During a Traffic Stop?

In Michigan, the American Civil Liberties Union (ACLU) has filed a complaint alleging that Michigan State Police officers used forensic cellphone analyzers to snoop in drivers' cellphones during routine traffic stops. PM talked to a Fourth Amendment expert to sort through whether that amendment's protections against illegal search and seizure should stop an officer from scanning your phone.

Are cops allowed to snoop through your cellphone during an ordinary traffic stop? According to an American Civil Liberties Union (ACLU) letter to the director of the Michigan State Police on April 13, that department has several forensic cellphone analyzers deployed in the field. Forensic analyzers are routinely used in police investigations to recover data from computers and other digital devices. Lately, cellphones have become valuable sources of evidence for police, since one phone can include almost all of an individual's private communications (SMS, recently dialed numbers, email, Facebook and Twitter posts) as well as location data from the device's GPS unit. The device used by the Michigan State Police is a portable forensic system called the Cellebrite UFED that can suck data from a variety of devices, including multiple Android phones and Apple iOS devices such as the iPhone and iPad. The company did not immediately return phone calls, but according to Cellebrite's product description, the UFED can grab email, Web bookmarks, Web history, SIM data, cookies, notes, MMS, instant messages, Bluetooth devices, locations, journeys, GPS fixes, call logs, text messages, contacts and more.

This type of forensic device is nothing new, but the ACLU's concern is that the UFED mobile units might have been used in routine traffic stops—which, the ACLU contends, would violate the Fourth Amendment's protections against unreasonable search and seizure. According to the ACLU's letter, the organization requested usage logs from the Michigan troopers' devices, but the state police requested more than half a million dollars to pay for retrieval of the documents and records, which the ACLU claims is unreasonably high. In a statement to PM, Tiffany Brown of the Michigan State Police said: "The Michigan State Police will provide information in accordance with the Freedom of Information Act (FOIA). As with any FOIA request under statute, there may be a processing fee to search for, retrieve, review, examine and separate exempt materials, if any."

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We wanted to know exactly how the Fourth Amendment applies when it came to traffic stops and phones, so we spoke with Fourth Amendment expert Wayne Logan, at the Florida State University. "One way to conceive of the Fourth Amendment is as an off-and-on switch," he says. "It's not on if it's not a search or a seizure, and it's not on if the citizen consents to the search or seizure." Logan told us that there is currently disagreement in the courts about whether cellphones, and smartphones in particular, can be searched after a person is arrested. "One way of looking at it is that phones are just like any other container. Let's say I'm stopped for speeding and the police find cocaine, and then I'm arrested for cocaine possession; the police could search my car. They could also search any duffel bags that were in my car, and let's say that I had a box of notecards—they could search that. If [an officer] can search that container of notecards, the question becomes: Can he also search my iPhone, which also contains note cards of a sort? But the other argument is that it differs completely in kind, since the type of information on the phone is so different." Logan agrees that, if not under arrest, a citizen is under no legal obligation to surrender a phone. But it is unclear whether people have been volunteering their phones to the Michigan State Police or police seized those phones during arrests.

The law gets even more complicated when it comes to moving violations that involve the phone itself—such as if you were charged with talking on your phone while driving. Logan says the phone could contain evidence about the violation and therefore might be subject to seizure. However, Michigan has no law prohibiting the use of cellphones in automobiles, so that couldn't apply there.

What happens next is unclear. If the ACLU presses the matter, it may well end up in the courts, but without a specific incident to pursue, there probably isn't yet a case. But if this has happened to any readers, let us know in the comments box. The ACLU would probably like to hear from you as well.

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